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Statement of Warren R. Leiden and AILA on S. 1563

AILA Doc No. 99092357 | Dated September 23, 1999

Statement of

Warren R. Leiden

American Immigration Lawyers
Association

on

S. 1563 – The INS Reform and
Border Security Act of 1999

Before the Senate Committee on the
Judiciary

Subcommittee on Immigration

September 23, 1999

Mr. Chairman and
distinguished Members of the Subcommittee, I am honored to be here today representing the
American Immigration Lawyers Association (AILA). AILA
strongly supports S. 1563, the INS Reform and Border Security Act of 1999, recently
introduced by Senators Abraham, Kennedy and Hagel. S.
1563 will go a long way toward resolving the many complicated issues raised when
reorganizing a federal agency that affects the lives of many people.

By way of introduction,
AILA is the pre-eminent immigration bar association, with nearly 6,000 attorney members,
and is affiliated with the American Bar Association.
AILA takes a very broad view on immigration matters. That is because AILA
Members represent individuals and families who have applied for permanent residence;
thousands of U.S. businesses that sponsor both temporary and permanent workers; foreign
students, entertainers, athletes, and asylum seekers, often on a pro bono basis. AILA
appreciates this opportunity to express its views on the issue of the restructuring of the
Immigration and Naturalization Service (INS).

Before discussing S.
1563, let me frame the issue for you. As the federal agency responsible for both enforcing
U.S. immigration law and adjudicating applications for naturalization and family and
business immigration, the INS needs to function efficiently, effectively, and fairly. However, it has failed to do so. There are many
reasons for that failure, and both the INS and Congress share some responsibility. First,
the agency has the important combined mission of immigration enforcement and adjudications
which together are too different functions that need to be both better differentiated but
also coordinated. Second, are the vast
changes in immigration law, the unprecedented growth in the INS’ size and
responsibilities, and ineffective management. Thirdly,
is the continued absence of adequate resources on the adjudications side that Congress, as
it addresses restructuring, also must address. Finally,
Congress has contributed to the agency’s problems because of conflicting,
complicated, and unfunded mandates. The
results are: that people wait years to reunite with close family members or to obtain U.S.
citizenship, businesses wait years to fill a job with a needed legal immigrant, and
immigration laws are not enforced consistently, professionally, or humanely.

AILA already is on record
urging the creation of a new, independent cabinet-level department or agency combining all
current immigration functions of the INS and the Departments of Justice, State, and Labor.
Such an agency should separate immigration services and enforcement functions. If a new, independent agency is unfeasible, AILA
urges the creation within the Department of Justice of two separate entities for services
and enforcement. Those new bureaus should be overseen by an Associate Attorney General for
Immigration Matters, reporting directly to the Attorney General. Having such a person in
charge would improve accountability by fully integrating policy making with policy
implementation, ensure direct access to high-level officials within the executive branch,
attract top managerial talent, and coordinate the efforts of the two bureaus.

To put it as simply as
possible, Congress should separate the adjudications and enforcement functions but keep
them in the Department of Justice. There must be strategic coordination between the two
functions. There also must be a single, focused, national chain of command to pursue both
an integrated national enforcement strategy and the immigration services functions. As I
wrote in my statement in the 1997 final report to Congress of the U.S. Commission on
Immigration Reform:

Separation of functions would permit the establishment of unified,
focused chains of command and operations at every level.
Separation of enforcement from adjudications would allow each function to
have a clear mission and to set clear goals on which performance could be judged and
accountability enforced. Separate functions
would benefit greatly from the ability to gear hiring, training, promotions, and
discipline to a clear mission. . . .

The two main functions of the INS – enforcement and adjudications
– should be separated into two different agencies within the Department of Justice,
with separate leadership. This would also
permit the insertion of a senior level office in the Department of Justice to coordinate
and lead the separate functional agencies.

AILA shares those views.
As a result, AILA has resolved that any INS reform must be based on the following four
principles:

(1) Separation of the
enforcement and adjudications functions:

Separation will lead to
more clarity of mission and greater accountability, which, in turn will lead to more
efficient adjudications and more accountable, consistent, and professional enforcement. S. 1563 meets that principle. It would create two
separate Bureaus within a newly created Immigration Affairs Agency in the Department of
Justice: The Immigration Services and Adjudications Bureau and the Immigration Enforcement
and Border Affairs Bureau. S. 1563 provides for coordination between the two Bureaus; it
also establishes immigration inspections, which combines service and enforcement
functions, as a separate entity within the Immigration Affairs Agency. While AILA believes
that inspections is almost entirely an adjudications function (and thus most properly
belongs in the Immigration Services and Adjudications Bureau, we do not oppose this
function as a separate entity within the agency).

Contrast that with H.R. 2528, introduced by Representatives Rogers (R-KY), Smith
(R-TX) and Reyes (D-TX), which would divorce the INS’ enforcement and adjudications
functions. In addition, H.R. 2528 would
improperly house immigration inspections in the enforcement bureau. AILA strongly opposes that provision, because
inspectors have quasi-judicial authority and placing them in an enforcement bureau would
provide no checks or balances to ensure that inspectors do not deport legitimate asylum
seekers, refugees or immigrants. In addition, H.R. 2528 would require that people applying
for asylum and others be detained by the Bureau of Prisons.
Locking up refugees and immigrants with convicted criminals violates international
treaties to which the U.S. government is a signatory,

(2) Accountability and leadership at the top: Appoint a high level, full-time person at the top,
in charge of supervising both functions, who will be able to integrate policy making with
policy implementation, as well as to coordinate the separate service and enforcement
chains of command.

There needs to be one full-time, high
level person in charge of our nation’s immigration functions. S. 1563 fulfills that
principle by creating the Associate Attorney General for Immigration Affairs. Having one
person in charge would improve accountability by fully integrating policy making with
policy implementation, ensure direct access to high-level officials within the executive
branch, attract top managerial talent, and coordinate the efforts of the two bureaus. In
contrast, H.R. 2528 provides for no full-time coordinating entity, thereby making it
virtually impossible to articulate a coherent, unified immigration policy

(3) Split the functions, but establish coordination
between enforcement and adjudications.

S. 1653 recognizes the
need for the two bureaus to be closely coordinated. This
bill achieves this coordination by providing that a high-ranking official, with authority
over the two bureaus and shared support services, is able to coordinate shared information
systems, legal counsel, policy, and administrative infrastructure, including personnel and
training.

In contrast, H.R. 2528 would make such
coordination difficult. The two bureaus would
end up working at cross-purposes, with its leaders sending conflicting messages on policy
matters of complex laws. Consider the
following examples:

1) The
Border Patrol picks up a suspected illegal alien. He
claims to be a lawful permanent resident, but does not have his green card in his
possession. The Border Patrol needs to check
his status with Adjudications before determining whether to deport or detain him.

2) Immigration
Adjudications receives a petition for H-1B status and suspects fraud. The Service Center wants to check on the
employer’s record with INS and whether it has been found to hire undocumented workers
in the past (a legitimate part of a profile for fraud is to look at the past fraud of the
employer). The Adjudications division would
need to access enforcement records to check on the employer’s work site
investigations records.

3) An
adjustment applicant claims to have no periods of unlawful presence. The Immigration Adjudicator suspects otherwise
based upon claimed dates of entry. Without
easy access to entry/exit records from Inspections, the adjudicator cannot confirm her
suspicions.

4) There
is a discrepancy regarding physical presence in an application for Temporary Protected
Status (TPS). INS needs to examine entry
databases. Without easy access to those
inspections records, the application cannot be properly or efficiently adjudicated.

5) An
F-1 student overstays, marries a U.S. citizen and applies for conditional residence. The marriage does not last until the time of the
permanent residence application, and there are potential issues of fraud. After the interview, there are continuing
concerns. The investigator wants to refer the
case to proceedings.

Without
close linkages between the two agencies, such routine referrals would likely become a
Kafkaesque nightmare. Senate staff handling requests for assistance on immigration matters
also would have to deal with two separate agencies, making their jobs much more difficult
and time-consuming.

As Congress ponders reforming the INS, we urge you to also
review the funding of immigration functions. Currently, enforcement functions are
supported by Congressional appropriations, while adjudiciations are almost entirely funded
by user fees. In theory, fees paid by
applicants for immigration benefits are used for adjudicating the applications. In
practice, however, a large share of the users fees are diverted to support other
functions. During FY 1998 and FY 1999, for
example, Congress mandated the diversion of about $300 million to pay for detention,
Department of Justice Oversight, Inspector General investigations, and infrastructure
costs not related to directly supporting immigration benefits. Immigrants, particularly when they already are
experiencing lengthy delays and unacceptable levels of service, should not be forced to
pick up the check for programs unrelated to the processing of their applications. The responsibility for programs which do not
generate fees should be shared among all taxpayers – not just those who happen to be
tax-paying immigrants

AILA supported the
establishment of the Exam fee account when it was first created. However, given its current history and the status
of that account, we have revised our views to urge Congress to supplement user fees with
Congressional appropriations to ensure that an appropriate level of service is achieved. In addition, we urge Congress to stop diverting
funds from the user fee account to pay for unrelated, but important, initiatives. Congress should find sources of funding, other
than from user fees, to pay for these efforts.

S. 1563 recognizes this problem, and provides financing
reforms. It specifically would require that
fees collected for an adjudication or naturalization service be used only to fund those
services or the costs of other similar adjudications. In contrast, H.R. 2528’s
stunning silence on funding virtually would ensure that the immigration
“service” function would be severed from the resources it needs to make badly
needed improvements to customer service, and to address the nearly three year-long backlog
faced by legal immigrants waiting for green cards or citizenship.

In closing, let me reiterate that AILA strongly urges passage of S. 1563 because it
adheres to the four principles noted above. It
also is important to remember that:

·
Restructuring is but the first
step in a long process, the end result of which is effective, efficient, and fair
adjudications and enforcement. Both Congress
and the immigration agency need to be mindful of the end result. Congress must continue to pay attention to the
INS’s needs and the demands it faces, while the agency needs to deliver on its
promises.

·
Congress has the opportunity to
make reorganization a success: Congress must be ever mindful about its important role in
creating and maintaining a vital and successful federal immigration function. Conflicting, complicated and unfunded mandates
will threaten the agency’s ability to fulfill its mission and bring us right back to
where we are today.

·
Any meaningful restructuring of
the immigration function needs to include financing proposals. Restructuring would be incomplete without also
reviewing the sources of funding for this function. Especially
given the diversion of funds in the adjudications function noted above, any successful
restructuring plan must respond to the funding demands of the adjudcations function. Both enforcement and adjudications are in the
national interest and should be adequately funded.

AILA is dedicated to
working with Congress and the INS to ensure that reorganization succeeds. S. 1653 is a
huge step towards that end. We appreciate the opportunity this hearing has given us to
explore this important issue. Thank you.